A landmark case heard recently in the Court of Appeal has highlighted an important and significant shift in the way child care cases involving guardianship and parental responsibility should be considered.
In cases where the court needs to decide with whom a child should live, there has traditionally been a presumption in law in favour of the biological parent, however in the case of Re E-R (A Child)  EWCA Civ 405 at the Court of Appeal, Lady Justice King stated “being a natural parent does not create a presumption in favour of that person, neither does the length of time that a child has been living with a person – the welfare checklist should be applied and a decision made on what is in the childs best interest.”
The difficult circumstances surrounding this case related to an appeal against a child arrangements order providing for the child, T, to live with her father following her mother’s death. The appellants were the mother who was terminally ill, and her friends who had been caring for her and T. The mother died a week before the appeal was heard.
The child’s parents had separated acrimoniously when the child was 18 months old with occurrences of domestic violence suffered by the mother during the marriage resulting in a 2 year injunction against the father. After separating, the mother was diagnosed with terminal cancer and moved in with her friends to help with care for her and the child. The mother also made a Will appointing her friends as Guardians for her daughter.
The father successfully challenged the guardianship in court with the judge basing the decision on the presumption that a young child would be better off in the primary care of a natural parent despite the judge having reservations about the evidence given by the father in court.
The hearing at the Court of Appeal however concluded that the judge wrongly conducted his analysis of the child’s best interests on the basis of the presumption in law in favour of a natural parent, and that had the judge applied the welfare checklist without elevating the father’s status as a biological parent, the status quo would have been allowed to prevail and the child allowed to remain in the care of the appointed Guardian.
Commenting on the case, Watson Ramsbottom Director Patrick Swanney said “ This is a significant and welcome shift in the court’s approach to child arrangements. We regularly deal with cases, particularly involving domestic abuse, where the presumption in favour of the natural parent has served to effectively further punish the victims and clearly not been in the best interests of the child. We are now seeing recognition from the court that the issue and definition of the child’s best interests is often more complex and requires detailed analysis to achieve the right outcome. Above all, this ruling should give people in similar circumstances the hope that with the right legal advice, your child’s best interests can be properly protected.”
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